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Rule 627. Time For Issuance (1984)

TEXT

If no supersedeas bond or notice of appeal, as required of agencies exempt from filing bonds, has been filed and approved, the clerk of the court or justice of the peace shall issue the execution upon such judgment upon application of the successful party or his attorney after the expiration of thirty days from the time a final judgment is signed. If a timely motion for new trial or in arrest of judgment is filed, the clerk shall issue the execution upon the judgment on application of the party or his attorney after the expiration of thirty days from the time the order overruling the motion is signed or from the time the motion is overruled by operation of law.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: The words, "from the time the motion," are inserted after the word "or" in the second sentence.

ADVISORY OPINIONS

(No. 105) Question: Rule 627 under Executions provides that execution shall issue after the expiration of twenty days from final judgment. Rule 755 under Forcible Entry and Detainer on appeal to county courts provides that writ of restitution or execu­tion or both shall be issued by the clerk and executed "as in other cases." Does this rule mean that when the plaintiff obtains a final judgment in a forcible entry and detainer suit in the county court, he must wait twenty days before obtaining and executing a writ of restitu­tion?

Answer: It is the opinion of the sub­committee that the question should be answered in the negative. That portion of Rule 755 which states that writs of restitution or execution shall be issued by the clerk and executed by the sheriff or constable "as in other cases" refers to the method of issuing and executing the writ rather than to the time of the issuance of the writ. Rule 755 is an exact copy of the former Statute (Article 3993), and we find no decisions holding under the Statute that a writ of restitution could not be issued and executed until the time had arrived for the issuance of a writ of execution.

Rule 627 providing that the clerk shall issue execution after the expiration of 20 days from the rendition of final judg­ment fixes the time for the issuance of executions, but it does not relate to writs of restitution nor does it fix the time with­in which writs of restitution can be issued or executed.

Rule 748 expressly provides that "No writ of restitution shall issue until the expiration of two days from the rendi­tion of judgment;" and it is the opinion of the subcommittee that under this Rule writs of restitution can issue at any time after the expiration of two days from the rendition of judgment, and that such writs can then be executed immediately by the officer. Although Rule 748 might be construed as being applicable only to the procedure in the Justice Court, nevertheless the portion of said rule just quoted is not necessarily so limited in its application. Inasmuch as this is the only express declaration in the Rules as to how soon a writ of restitution can be issued after final judgment, we feel that it should be given effect in both the Justice and County Courts. This construction is also supported by the general policy of the Rules to bring about a speedy disposition of appeals in forcible entry and detainer suits.

6 Tex. B.J. 550 (1943) reprinted in 8 Tex. B.J. 37 (1945).